Unknown County MsArchives Court.....Stark, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Stark, Appellant, v. Mercer, Adm’r.

pages 377-382

It is a settled rule that a bill of review can only be entertained for errors 
of law appearing in the body of the decree, or for new and material matter 
discovered after enrolment of the decree.

A general decree on the foreclosing of a mortgage, that the complainant have 
executing for any balance unsatisfied by the sale, is error; for which the 
decree will be reversed. The remedy for such balance is at law.

APPEAL from the superior court of chancery.

This was a bill filed by Stark for a review of a decree made against him in 
the superior court of chancery, in favor of Mercer, as administrator, &c. The 
decree was for the foreclosure of a mortgage, and the sale of the mortgaged 
property to the amount of 10,152 dollars and 54 cents. The decree gave Stark 
thirty days to pay the debt and interest, and if not paid in that time, the 
equity of redemption was to be foreclosed, and the property sold at public 
sale.

The decree also provided, that if the mortgaged premises did not sell for 
sufficient money to discharge the debt, then Mercer should have execution 
generally, against Stark for the deficit.

The bill alleged the discovery of new and important testimony. There was a 
demurrer to the bill, decree of dismissal, and an appeal to this court.

Several other points were made in this cause, but not being pertinent to the 
decision of the court are omitted to be stated.


Winchester, for the appellant.

1. The chancery court has no power to enforce its decrees by executions at 
common law, and section 66 gives no such authority. Rev. Code, 66. Besides, 
the jurisdiction of the court only extended to foreclose and sell.

2. There is an allegation in the cross bill, that the land sold for less than 
its value, because it was understood by bidders, that the land was to be 
purchased in trust by Farrar. The new matter discovered is evidence of this 
averment.

1. The decree must be signed, before it can be enrolled.

After enrolment, a rehearing cannot be granted; but before enrolment, if 
either party feel aggrieved by the decree, he may petition the court for 
rehearing.

In New York, the chancellor cannot sign the decree, until thirty days after it 
is pronounced, to give the party an opportunity to apply for rehearing. 
Blake’s Chan. Prac. 163. The same rule in this state. Rules in the Court of 
Chancery, p. 17, RuLe 27. So in England, 2 Mad. 452, 454. Here one judge was 
not authorised to render a final decree.

The decree being drawn up and approved, and signed in chancery, by the 
chancellor, and in the exchequer by such of the barons as were present at the 
hearing, it is engrossed on rolls of parchment. Barton’s Equity, 199; Practice 
in South Carolina, 4 Eq. Rep. 347. It is the signing by the judges which makes 
it a final decree. The enrolment of a decree before it is signed, is of course 
irregular and a surprise, and the decree will be opened.

The decree ought to be opened, and the cause remanded to the chancery court 
for a hearing upon the merits. 2 Maddock, 464.

"Where error appears in the body of the decree, if enrolment is gained by 
surprise, or irregularity, it will be opened."

2. If the Supreme Court had no jurisdiction to make the decree, it ought to be 
set aside for that reason, and the cause remanded in the same situation it was 
in when transferred to the Supreme Court. Walker’s Rep. p. 453, shows the 
court were divided equally.


M’Murran, contra.

The first objection to the bill of review in this case may, perhaps, be 
considered more a matter of form than substance, but I think it is still a 
fatal one. Rev. Code, 99, sect. 59. It was granted by a judge of the Supreme 
Court in vacation. This he had no right to do. It could be done only by the 
chancellor, or the old Supreme Court in session, sitting as a chancery coitrt. 
Hardin's Rep. 242, 43. And besides Girault, an original defendant to the suit, 
ought to have been made a party to the bill of review.

But again. There are but two grounds upon which a bill of review can or will 
be granted. 2 Mad. Chan. 536, 537, 538, 539. Either for some material error 
apparent upon the face of the decree or for some new matter of fact, relevant 
to the case discovered since the decree was pronounced, and which, with due 
diligence, could not have been discovered before. 2 Johns. Chan. Rep. 488, 
491, &c.; 2 Atkyn’s Rep. 528. If the errors be of the former kind, they must 
be substantial errors in law, and not matters of form or in abatement, or 
contrary to the proofs in the cause.

After a solemn decision of the case, and a decree pronounced, it will not be 
reviewed for slight causes. The decree will put at rest the further litigation 
of the case, unless errors of law are most glaring on the face of tbe decree, 
and most flagrant injustice has been done to the party seeking a review of the 
decree.

On the other hand, if the application be founded on the discovery of material 
matter since the decree, the showing must be most strong. 3 Johns. Chan. Rep. 
126, 127. The discovery of new evidence or witnesses who can depose to the 
same points in issue, will not do. Hardin’s Rep. 451, 456, 342. It must be the 
discovery of new and material matter, such as a receipt, a release, or the 
like, and not merely additional testimony. M’Craisan v. Finley, 1 Bibb, 455. 
And that new matter must be unknown to the party, to his counsel nnd agent, 
and which could not have been discovered by ordinary diligence, and attention 
to the preparation of the cause for a hearing. If a bill of review could be 
sustained on any other ground, there would be no end to them. Franklin v. 
Wilkinson, 3 Munf. Rep. 112, 114. The court will find how decisive the 
doctrine is laid down in all the authorities cited, and how conclusive against 
the bill of review in this case. Courts are not at all disposed to open the 
door of litigation after it has been once, nay, as in this case, twice 
deliberately closed.

The first three reasons assigned are, that a rehearing was granted, but that 
Mr. Starkie’s counsel was not reheard, he being sick. This is to receive a 
rigid construction, and it does not appear that that was the sole cause of the 
counsel not being at court. And the court at that term had a letter from Mr. 
Walker, and statements from others as to his health, and it was a matter for 
the discretion of the court at that time, whether it would hear causes in 
which Mr. Walker was concerned, and determine them or not. And surely it is no 
error apparent on the face of the decree, in law, nor is it newly discovered 
matter, for it was known to the court and all concerned at the time. But the 
case cited from 3 Munford is direct and conclusive on this point. As to the 
decree being signed by one judge, it is the practice of the court; it is 
spread on the minutes of the court, and the minutes are signed by one judge. 
If it were wrong on that ground, then there was nothing right in the old 
Supreme Court, from its organisation down, as its records will show. It is 
assigned, too, that there are some defects in the shape of the decree. I can 
discover none, and it is like all decrees foreclosing mortgages. Rev. Code, p. 
92, sect. 33, gives the court power to prescribe terms of sale.


Mr. Chief Justice SHARKEY delivered the opinion of the court.

The complainant, by bill for that purpose, prays a review of a decree made 
against him by the Supreme Court, in favor of the defendant to this bill, and 
there is a demurrer, which brings up the whole merits of the bill. If the 
allegations be sufficient in themselves to justify a review, it must be 
granted if not, it must be refused.

It is a settled rule, that admits of no qualification, that a bill of review 
can only be entertained on one of two grounds. 1. For errors of law appearing 
in the body of the decree. 2. For new and material matter discovered after the 
decree is enrolled. Both of these grounds are said to be covered by the 
present bill.

Amongst the various reasons urged as sufficient to sustain the application, 
there is but one which deserves consideration. The others, numerous as they 
are, have no good foundation. The fifth objection taken to the decree is, that 
the execution therein directed for the balance in case of deficiency in the 
sale, was illegal.

This question is not entirely free from difficulty. Sales of the mortgaged 
premises after foreclosure, have taken the place of strict, or technical 
foreclosures, in which the mortgagee took the land, and are of comparatively 
recent origin, so that we find but few authorities on the subject. The remedy 
of the mortgagee for a deficiency, is regulated in New York, by statutory 
provision, by which the chancellor is authorised to make a decree, and grant 
an execution for the residue. That a state so celebrated for its eminent 
jurists should have passed such a statute, may be regarded as evidence almost 
conclusive, that no such remedy was known in the English practice. After a 
diligent search amongst the English authorities, we are unable to find any 
case in which a decree has been made for a deficiency after sale; on the 
contrary, the remedy is uniformly regarded as purely a legal one, although the 
point is not directly decided. 8 Vesey, 527; 13 Ibid. 198; 1 Maddock‘s 
Chancery, 531. It is regarded in the same way by the American authorities. 5 
Cowen, 380; 4 Kent’s Commentaries, 182. It is evident from the way in which 
Chancellor Kent treats the subject, that he considers the remedy to be at law 
on the bond, although he does not directly raise the point. He did not in the 
original text, notice the statute, but it is made the subject of a note to the 
third edition, from which I infer that it is a recent one. There are good 
reasons why it is considered a legal remedy, when we consider the respective 
jurisdictions of the courts of law and equity. A mortgage is but a lien on a 
particular thing taken as a collateral security for the payment of money, and 
the mortgagee always has a concurrent remedy against the person which he may 
pursue at the same time, which concurrent remedy is purely legal. A court of 
chancery can only take jurisdiction for the purpose of making the lien 
effectual, and where that is accomplished, its jurisdiction ceases, because, 
from the nature of the contract its aid is required no father, the collateral 
remedy being completed. It is a proceeding in rem, auxiliary merely to the 
remedy against the person. The mortgage is the only matter in the transaction 
over which chancery has jurisdiction, and as that was only designed as 
collateral security, so far as to make the mortgaged property both for an 
original and independent undertaking, when that is completed, the only subject 
of its jurisdiction is exhausted. The indebtedness is independent of the 
security, and requires no aid from chancery, being cognisable at law. The bond 
or note given, is the evidence of the debt, and the foundation of the remedy, 
the mortgage, is merely collateral to it. The note of the case of Dunkley v. 
Van Buren, reported in 3 Johns. Chan. Rep. 330, and cited in the notes to 1 
Maddock, 531, seems to be decisive of the question. The note of the question 
decided is, that "on a bill to foreclose a mortgage, the mortgagee is confined 
to his remedy on the mortgage; and the suit cannot be extended to other 
property, or against the person, in case the property mortgaged proves 
insufficient to pay the debt." The decree in this case is general, that the 
complainant have execution for any balance unsatisfied by the sale. In this it 
goes too far. We cannot, in this case, adopt the general rule suggested by 
counsel that chancery having obtained jurisdiction for one purpose, will 
retain it for all. His remedy seems to be a legal one, over which courts of 
chancery have not heretofore assumed jurisdiction, and we cannot make new 
remedies, but can only enforce such as exist, either by statute or the common 
law. The case last referred to, it is presumed, was decided before the 
enactment or the statute in New York for that purpose, and may be regarded as 
having been made in accordance with the principles of the English practice.

The review must be allowed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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